AIPPI Congress Report 14: GUI Goo for Chewy Chewing

If the title of the post does not ring a bell, then you are not a Dr Seuss fan. In any event, Tom Reid (Accenture and AusKat) is back in action with a summary of AIPPI's resolution on the protection of Graphical User Interfaces (GUI) from Sydney. Tom reports on the goings-on:

"Delegates at this year’s AIPPI conference
avoided swallowing their gum when they passed a resolution on IP protection for
graphical user interfaces (GUIs).

The resolution defines a “GUI” as “an
interface which allows users to interact with electronic devices through
graphical elements instead of typing characters”—basically, for desktop
computers, everything that came after command-line interfaces, and for phones,
everything beyond simple telephone number input. Many of those born after the mid-1980s, who may
never have used a computer or a phone without a GUI, may think of the GUI and
the device as ontologically one and the same, at least in everyday use. The perceived value of a
meticulously-designed GUI in the consumer marketplace was of course amply demonstrated
by the smartphone wars.

The focus of AIPPI’s definition, and
therefore ultimately the resolution, is on visual elements: icons, menus,
scroll bars, windows, transitional animations, and dialogue boxes. The resolution does not specifically address
non-graphical elements of a GUI, such as sounds (where used as auditory
signals, eg calendar alert tones, or as input, such as voice recognition) or other
sensory interfaces (eg haptic cues such as vibrating alerts, and Apple’s “Force
Touch” input feature) and the interesting questions these might raise (could a
particular vibration pattern, say, be registrable as a trade mark?).

Put very simply, the resolution states permissively
that GUIs “should generally be capable of protection” by patents, designs,
copyright, and trade marks. While on its
face a somewhat anodyne statement, there is some elaboration.

In relation to designs protection, which has
been a focus of the relevant WIPO Standing Committee recently,
the resolution states that a GUI should be protectable by design rights without
requiring a connection to a physical device; that statement is relevant to
those common law jurisdictions, including Australia, where designs protection
has in practice been limited to the physical form of a product (the “at rest”
concept). Expanding on that, the
resolution states specifically that movements and transitions (think of the way
an Apple OS X desktop window “funnels” into the Dock when minimised, as a
classic example) should be protectable by design and trade mark rights, and
that registration authorities should allow the filing of data that can
dynamically represent them in their true form, as opposed to permitting only
drawings that imperfectly reproduce them statically.

In addition, the statement that GUIs
“should generally be capable of protection by patents” perhaps implies that
software should not, per se, be unpatentable subject matter, insofar as GUIs
are ultimately embodied in code (sometimes in the broader sense of
firmware). The patentability of
computer-implemented inventions was, however, the topic of a separate and
specific AIPPI resolution at the same conference.

These things aside, while some individual
elements of a GUI—an icon or a desktop background, for example—are already capable
of protection in most jurisdictions today by at least some combination of traditional
copyright, design, or trade mark (and related) rights, the system is patchwork,
and the nature and scope of protection offered varies greatly depending on the
head of IP into which the element is to be shoehorned. For some decades now, the wider question has,
of course, been whether the GUI overall, and its look and feel in particular, should
be more specifically protectable in some way, perhaps by a tailored sui generis
right. The question is becoming more pressing
as the importance of the “user experience” is consolidated in the consumer arena
and expands to commerce and industry; white collar workers will recall how
recently it was that the office computing environment invariably lacked any of
the slickness of their gadgets at home, but that situation is now beginning to
change.

AIPPI delegates resolved in
favour of a statement that sui generis protection should not be necessary, having regard to the protection that “should be
available” under existing heads of IP. But
the key words there are “should be available”, recognising that where traditional
IP rights (especially patents) are curtailed in their application to GUIs, the
scope of protection available may not be adequate. What AIPPI considers should be done, if
anything, if that situation persists remains to be seen."